Allowed

Suraj v. State of U.P. and 3 Others

Allahabad HC12 Jun 2023BAIL/20269/2023

Case brief

AI extract

What is this about?

In this bail application under the POCSO Act and IPC, the High Court observed serious contradictions in the victim's statements and noted uncertainty regarding her age due to the margin of error in medical reports. The court held that the material did not establish prima facie involvement and allowed bail on furnishing a bond and sureties with standard conditions.

What did the court decide?

The applicant shall be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

Suraj Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:126229

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Court No. - 69

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20269 of 2023

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Applicant :- Suraj Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sunil Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Mayank Kumar Jain,J.

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Heard learned counsel for the applicant, learned AGA for the State and perused the record.

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The present bail application has been filed on behalf of applicant in Case Crime No. 699 of 2021, under Sections 363, 366, 376 of IPC and Section 3/4 of POCSO Act, Police Station Shikohabad, District Firozabad with the prayer to enlarge the applicant on bail.

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It is submitted that it is a case of false and malicious prosecution. it is submitted that the victim in her statement recorded under Section 161 and 164 Cr.P.C did not made any allegation of enticing her against the applicant while she stated in her statement under Section 161 Cr.P.C. that she had accompanied with the applicant with her own sweet will. The victim refused to undergo her medical examination. It is submitted that as per the FIR, age of the victim is 16 years and as per the medical report, the age of the victim is shown 17 years. In this respect, the law is settled that the margin of error in ascertaining the age by radio logical examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out. It is submitted that there is a serious contradiction in the statement of the victim recorded under Section 161 and 164 Cr.P.C. which indicates that the story of prosecution in FIR is highly improbable. It is submitted that prima facie it is established on record that the applicant has been falsely implicated in the case. It has been further submitted that applicant is languishing in jail since 21.10.2022 having no criminal history and that in case the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

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Per contra, learned AGA has opposed the prayer for bail of the applicant and submitted that as per last 1 to 8 school certificate

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date of birth of the victim is 01.01.2006. It is further submitted that school certificate of class 1 to 8 is not a valid proof and as per the medical examination the age of the victim is 17 years. It is submitted that the victim is minor on the date of incident and therefore, it is not a case where the accused should be enlarged on bail. He further submits that the innocence of the applicant cannot be adjudged at pre-trial stage, therefore, applicant does not deserve any indulgence. In case, the applicant is released on bail he will misuse the bail.

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Be that as it may, though there is on record the educational certificate of the victim of Class-1 to 8 indicating the date of birth of victim is 01.01.2006 but that should not be conclusive at this stage in the absence of any proof regarding genuineness of the educational certificate produced on record. As per the medical examination, the age of the victim is 17 years. The law is settled that the margin of error in ascertaining the age by radiological examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out. As there is serious contradiction in the statement of victim recorded under Section 161 and 164 Cr.P.C., this Court is of the view that the material available on record does not establish prima facie involvement of the accused in the crime.

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Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

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Let the applicant Suraj involved in aforesaid case crime be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:

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(i) The applicant shall not tamper with the evidence or threaten the witnesses.

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(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(iii) The applicant shall remain present before the trial court on

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each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(v) The applicant/s shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.

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In case of breach of any of the above condition, the Court below shall be at liberty to cancel bail of applicant in accordance with law.

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Any observation made above shall not be treated as any finding on the merit and shall not prejudice the trial.

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Order Date :- 12.6.2023 PS

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Digitally signed by :- POOJA SHARMA High Court of Judicature at Allahabad

Suraj v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Suraj v. State of U.P. and 3 Others

Case brief

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